United States v. Crosby

This matter is referred to the undersigned to hear and determine pretrial matters pursuant to 28 U.S.C. § 636 (b)(1)(A) and, pursuant to 28 U.S.C. § 636(b)(1)(B), to submit proposed findings of fact and recommendations for the disposition of any motion excepted by 28 U.S.C. § 636(b)(1)(A) (Docket No. 8, Aug. 8, 2008; see also text minute entry Jan. 29, 2013 (referring matter back after arraignment on Second Superseding Indictment)).

The instant matters before the Court are the remaining defendants' second[1] set of omnibus motions (Docket Nos. 938 (Jerome Crosby), 936 (Patrick Perry), 937 (Wallace Peace)) which seeks various discovery and disclosure relief. Responses to these motions were due by June 19, 2013, with argument finally set for June 25, 2013 (Docket No. 905; see also Docket No. 856). Crosby also now moves to suppress evidence (Docket No. 938). This motion will be addressed in separate Report and Recommendations.

The Government has filed responding papers (Docket No. 939), including a reciprocal motion for discovery (id. at 25), and oral argument was heard as to Peace's motion on June 25, 2013, and other motions were deemed submitted on papers on that date (Docket No. 943). The Government notes its pretrial submissions (Docket Nos. 819-21) made prior to the entry of the Second Superseding Indictment (Docket No. 939, Gov't Response at 1).

BACKGROUND

This case now involves four defendants (Docket No. 849, Second Superseding Indict.). In earlier stages of this case, there were up to thirty defendants in this case, arising from a Drug Enforcement Administration ("DEA") and Buffalo Police Department investigation of alleged drug trafficking and related criminal activities of Wallace Peace, Patrick Perry, and Jerome Crosby from January to July 29, 2008.

The Government once characterized (see Docket No. 314, Gov't Response at 2) this case as arising from an extensive narcotics trafficking investigation, where the Grand Jury initially returned an 86-count Indictment (Docket No. 1) against 27 defendants. Later that Indictment was superseded by a 109-count Indictment (Docket No. 190) against 30 defendants, and now to a 38count Second Superseding Indictment against the present 4 defendants[2]. Count 1 of this Second Superseding Indictment charges Crosby, Perry, Peace, and Antoine Callahan[3] with conspiracy to possess with intent to distribute and distribution of cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Counts 2-35 in the Second Superseding Indictment allege use of communication facilities to commit a drug felony, violations of 21 U.S.C. §§ 841(a)(1), 846, over various dates listed in the Indictment as a table of defendants, the dates and times of their alleged felonious conversations (hereinafter the "telephone counts") (Docket No. 849, 2d Superseding Indict., counts 2-35). Peace was also charged as a felon in possession of a firearm, possession of firearm in furtherance of drug trafficking, and as a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(c)(1), 922(g)(1), 924(a)(2) (id., counts 36-38).

In April 2008, the DEA with the Buffalo Police Department investigated the alleged criminal activities of Peace and his criminal associates (Docket No. 314, Gov't Response at 3). In June and July of that year, Buffalo Police officers and DEA agents obtained New York State eavesdrop orders for telephones used by Peace, Patrick Perry and Crosby (id. at 3, 2). The Government contends that the evidence from this investigation would show that Peace headed "an active cocaine distribution organization operating in and around Buffalo, " that he handled day-to-day distribution as well as directing a group of youths to conduct home invasions and robberies of rival drug dealers (id. at 4). Peace also allegedly trafficked in weapons and contacted other drug suppliers, such as Patrick Perry (id. at 4-5). The investigation revealed that Patrick Perry had a supplier, Jerome Crosby, who had been traveling to New York City in June and July 2008 to acquire kilogram quantities of cocaine (id. at 5). Arrest and search warrants were executed on July 29, 2008 (id.).

On June 24, 2011, this Court issued a Report and Recommendation (Docket No. 623 (Report & Recommendation)) and an Order (Docket No. 624 (Order)) on the defendants' earlier series of omnibus motions; familiarity with these papers is presumed.

According to the Government, the Second Superseding Indictment amends the charges related to the amounts of crack cocaine that allegedly was the object of the conspiracy and eliminates a large number of formerly alleged telephone counts and the money laundering count against Crosby (Docket No. 939, Gov't Response at 1-2; see Docket No. 849, 2d Superseding Indict.). Upon the arraignment under the Second Superseding Indictment, defendants filed the present motions, some of which request relief previously considered under earlier versions of the Indictment (see Docket No. 936, Perry Atty. Affirm. ¶ 6, incorporating by reference earlier omnibus motion papers). Defendants have not formally sought reconsideration of any prior rulings. These defendants now seek the same relief in most instances, with Crosby and Perry expressly moving to join their respective codefendants' motions (Docket Nos. 938, Crosby Atty. Affirm. ¶ 137; 936, Perry Atty. Affirm. ¶ 50). Peace only expressly moves for severance, for production of Brady material, and for discovery (Docket No. 937). For convenience, this Court will address motions as if each defendant seeks relief. The Government also notes that defendants were reminded that pretrial litigation has been concluded and that any motions on the Second Superseding Indictment would only supplement motions already made (Docket No. 939, Gov't Response at 2) and that this Court should not relitigate issues previously decided (id. at 3).

DISCUSSION

I. Effect of Superseding Indictment on Prior Rulings in this Case

An inspection of the docket from this 2008 case reveals extensive motion practice and the Indictment being superseded twice. Not addressed by the parties is the effect of previous Orders on motions filed under earlier iterations of the Indictment to the present motions before this Court. The law of the case doctrine applies here to uphold these prior Orders, barring an intervening change in law, newly discovered evidence, or clear error or manifest injustice, to "avoid reconsideration of issues already decided in the same proceeding even though there has not yet been a final judgment, " see United States v. Iorio, No. 1:CR-08-0068, 2008 WL 4006726, at *3 (M.D. Pa. Aug. 26, 2008) (court denied defendant's motion to dismiss a count in an Indictment reasserted in a Superseding Indictment when a similar count had been dismissed in the prior pleading) (citing 18B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478.1 (2d ed. 1987)). In United States v. Dunn, No. 1:09-CR-320-TCB-GGB, 2010 WL 3368129, at *3 (N.D.Ga. July 26, 2010) (Brill, Mag. J.), the district court held that "a superseding indictment does not give a defendant the right to re-litigate a motion to suppress when the superseding indictment raises no new issues regarding the legality of the seizure of evidence. The court's previous order is the law of the case" (citing United States v. O'Neill , 52 F.Supp.2d 954, 965-66 (E.D. Wis. 1999) (denying in effect reconsideration of denied motion to suppress wiretap evidence).

The prior decisions under earlier versions of the Indictment are law of the case in this prosecution. There has been no intervening change in the law or newly discovered evidence here. The allegations in the Second Superseding Indictment do not change the discovery issues raised in these motions. The new Indictment reduces the scope of the crimes already alleged. It would not be a clear error or manifest injustice to reconsider these already decided issues. In light of this, defendants' motions under the Second Superseding Indictment will be considered.

II. Bill of Particulars

First, defendants move for the filing of Bills of Particulars as to their respective roles in this case. Defendants seek specifics as to the amounts and types of controlled substances the parties allegedly conspired to distribute or discussed in the telephone conversations cited in the telephone counts (Docket No. 936, Perry Atty. Affirm. ¶¶ 13, 14; Docket No. 938, Crosby Atty. Affirm. ¶¶ 6-27). As applied to the Second Superseding Indictment, the Government rejects the necessity for Bills, arguing that defendants did not advance any facts to show how further particularization would help prepare their defenses (Docket No. 939, Gov't Response at 4; cf. Docket No. 314, Gov't Response to initial Motions at 10-16). Because of the voluminous discovery provided to defendants, other disclosures made during the course of the investigation, and "the relatively straightforward and uncomplicated (albeit extensive) nature of the charges against him, the defendant's requests for further particularization beyond that which has already been provided should be denied in their entirety" (Docket No. 939, Gov't Response at 8). As for Perry seeking particularization of the remaining telephone counts (Docket No. 936, Perry Atty. Affirm. ¶ 14), the Government argues that the charges were sufficiently alleged and that particularization is not necessary (Docket No. 939, Gov't Response at 9, 12).

Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a Bill of Particulars. Bills of Particulars are to be used only to protect a defendant from double jeopardy and to enable adequate preparation of a defense and to avoid surprise at trial. United States v. Torres , 901 F.2d 205 (2d Cir. 1990). The Bill provides a minimum of information to a defendant to allow the defendant to conduct his or her own investigation, United States v. Smith , 776 F.2d 1104, 1111 (3d Cir. 1985). The Government is not obligated to "preview its case or expose its legal theory, " United States v. LaMorte , 744 F.Supp. 573 (S.D.N.Y. 1990); United States v. Leonelli , 428 F.Supp. 880 (S.D.N.Y. 1977), nor must it disclose the precise "manner in which the crime charged is alleged to have been committed, " United States v. Andrews , 381 F.2d 377 (2d Cir. 1967). Notwithstanding the above, there is a special concern for particularization in conspiracy cases, United States v. Davidoff , 845 F.2d 1151 (2d Cir. 1988).

As previously noted in addressing defendant William Putnam's[4] Motion granting him particularization (Docket No. 475, Order of Nov. 3, 2010, at 5), Count 1in the Second Superseding Indictment alleges as its predecessor pleadings that the defendants did knowingly, willfully, and unlawfully combine, conspire, and agree together with others, known and unknown, to possess with intent to distribute quantities of cocaine (Docket No. 849, 2d Superseding Indict., Count 1; see Docket No. 190, Superseding Indict., Count 1) alleging a greater quantity of cocaine in the Second Superseding Indictment. Nowhere does it allege the means, locations (save within this District and "elsewhere"), or the role of any particular defendant (or the unnamed others) in this conspiracy. The next thirty-four counts lists telephone conversations among the named defendants in furtherance of the possession of cocaine for distribution (Docket No. 849, 2d Superseding Indict., Counts 2-35), with subsequent counts alleging individual defendants' possession of weapons while engaging in drug transactions or possession of weapons by convicted felons (id., Counts 36-38). Count 1 presents a vague allegation of a conspiracy. Despite superseding this Indictment twice, the present charges under Counts 1-38 are no more amplified than the earlier versions of these allegations under the initial Indictment or first Superseding Indictment. The only difference from the earlier decision on the motions for Bills of Particulars (cf. Docket No. 624, Order of June 24, 2011, at 4-6) is the fact that the Government filed, prior to filing the Second Superseding Indictment, a pretrial Memorandum (Docket No. 820) and other pretrial submissions (Docket No. 819 (proposed jury instructions) and No. 821 (Government witness list)) which outlines the allegations against each defendant. The only difference between this Memorandum and a Bill of Particulars is that, as an amplification of the Indictment, see United States v. Giamo, No. 09CR310, 2011 WL 5880827, at *2 (W.D.N.Y. Nov. 23, 2011) (Scott, Mag. J.); United States v. Dean, No. 08CR212, 2008 WL ...

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